Politico-judicial trial

In the recent past, we have seen Mark Siegel, Benazir Bhutto’s friend based in USA, deposing his video-linked online statement before the FIA, the pioneer investigation agency investigating in the case of assassination of Benazir Bhutto. He had deposed that Benazir Bhutto had shared an email with him about her apprehension of being assassinated and holding the then President Pervaiz Musharaf responsible for the same if the incident took place. Thus, the statement of Mark Siegel attained high evidentiary value in view of the peculiar circumstances of the case, especially when the incriminating evidence was lacking therein. Once he had deposed his statement, it was dually set to be crossed-examined at the Embassy in Pakistan where he was required to answer certain questions put across to him by the parties to evince the evidence corroborating the incident. Whatsoever, the fate of the said case, what we find is the latest precedent set in the dispensation of criminal justice in Pakistan.

Interestingly, in a surprising shift during the proceedings of the Constitutional Petition titled as Imran Khan Niazi versus Mian Muhammad Nawaz Sharif, well quoted as Panama Leaks in the Apex Court, Hammas bin Jassim, a prince of the Government of Qatar has issued a statement in favour of the Sharif family to the effect that his family had close relations with Mian Sharif, the father of Mian Nawaz Sharif and that he was ‘informed’ that Mian Sharif had invested and gifted the money to Hussain Nawaz from proceeds of the sale of his factory at UAE which in turn was re-invested by way of purchase of the case flats in London.

As against the past, compelled by the political circumstances and much desired by the people, the Apex court came to a bold rescue of the nation by admitting a ‘political’ rather than ‘legal’ petition on the condition of laying down its own TORs if the contesting parties failed to do so and that the parties had to accept the decision of the Honourable court, whatsoever.

Whilst growth in the circumstances and the ever changing contentions of the parties, the Honorable court seems to be in a fix as to whether how despite its being a judicial forum, it could investigate the charges like an investigating agency such as NAB, FIA and FBR etc. legally and professionally mandated for the purpose. That is, perhaps, why the Apex court had to remark how and wherefrom the process of scrutiny should be started, by it or by any such commission.

Specifically, the case has to be adjudicated on three major broad types of evidence, i.e, documentary evidence, ocular or as to the modern era of electronic media evidence and above all the circumstantial evidence. Thus, paradoxically, the case seems to be admitted more on factual grounds rather than the law points where the Apex court is actually mandated to admit the petitions. This sole fact proclaims the very political nature of the instant petition and sufficient to compromise the sanctity of the Honourable court by all means in the event of any decision in favour or disfavor against the petitioner or the respondents which shall absolutely feel aggrieved having no further appellate forum and hence dissatisfaction, nay frustration. Therefore, the Apex court is left with no other option but to undergo a politico-judicial trial by itself and its choice. It has, thus, become far more important for the judiciary itself than the parties. Therefore, the judiciary has to take extraordinary care in the instant case.

As to the documentary evidence, Hussain Nawaz whilst separating his case from the prime minister has submitted a written statement of the said prince from Qatar, which turns out to be most important piece of evidence whereupon entire forte of the petitioner and respondents stays. Legally, the Apex court shall be lacking its territorial jurisdiction to cause the attendance of principal witness living abroad and away from the territorial jurisdiction of the Honorable court. However, the Apex court may, if it deems the document worth appreciating, direct the respondents to produce their ocular witness in their defense to corroborate the evidence with facts as to how the money was transferred, invested and the accounts were renditioned and regulated time to time. The precedent, however, is available in the case of Siegel’s deposing his statement online but still that is volunteer, caused by the respondents and subject to cross-questioning by the petitioner and the Honorable court. In that case, the burden of proof lies on the defense or the witnesses to establish its innocence by way of producing incriminating evidence in its favour and it may be shifted on the petitioner to prove it otherwise against the defense by way of establishing substantial contradictions therein if the defense succeeds in proving its case.

As to the circumstantial evidence, it is so floating on the surface both in favour and against the petitioner and the respondents. Admittedly, circumstantially, the Sharif family including Mian Nawaz Sharif has been engaged in mega business projects which like any other worthwhile business tycoon may have the capacity to re-establish its business demised by any political or non-political reason, by way of utilizing his expertise, goodwill and by raising funds from the local or foreign friends or the banks. On the other hand, the plentiful circumstantial evidence may also be available against the Sharif family. Prima facie, the contradictions found in various media statements relayed by the respondents may be sufficient to establish the charges of corruption for failing to justify their assets beyond known sources their income, especially when the series of proceeds of sales and subsequent investments is not sufficiently and satisfactorily established or is otherwise proved by the petitioner. Therefore, the Honourable court or any such commission has to rely mainly upon the circumstantial evidence which may play a decisive role as per se settled principle that people can lie but not the circumstances.

The Book, the press clippings, the media and public statements shall have to be transcripted and corroborated by the references, sources and the technicians recording and editing the same which shall be a time taking and laborious job not only for the contestants but also for the court causing irreparable loss to the general applicants.

Admittedly, legally, the defense on raising the 22 years old allegations may not be a valid defense as National Accountability Ordinance, 1999 empowers the inquiry into the matter of corruption with effect from January 1, 1985 which is much beyond the time claimed in the defense. The contradictions in the statements by the Prime Minister on the floor of the House and the facts may sufficiently be regarded as omission, miscalculation, non-preparedness and above all political at one hand whereas mis-declaration by him in the capacity of both a member of legislature and the chief executive before the legislature if these are found to be stated in mala fide intention or mens rea. Again, technically, the Honorable court shall be restrained to treat any such media or recorded evidence as secondary instead of primary or incrimination evidence leaving the Honorable court to the option of merely drawing an inference therefrom to satisfy itself on any point of evidence already available with it. The question of connecting the prime minister with the commission of alleged offence is another technical stride which the opposition has to cross even though the alleged financial crimes are established against his co-accused sons and daughter and they are consequently punished.